from the justice-lol dept

Want to convict two people for the same burglary? It can be done. If you're a state prosecutor willing to knowingly offer up perjured testimony, the impossible becomes the routine. (h/t to Eric Goldman)

Early in the morning of December 19, 2012, a person wearing a mask, two hooded sweatshirts, and gloves broke into a Dollar General store in Mishawaka and stole approximately $3,500 in cash. Video surveillance revealed that the burglar was a white female. On December 28, police investigating the burglary questioned [Nicole] Greenlee, a white female employee of the Dollar General store, who ultimately confessed to the burglary.

At one point during the investigation, Greenlee named [Antonio] Smith, her boyfriend at the time, and another woman as accomplices in the burglary, but police concluded that Greenlee had acted on her own. The State charged Greenlee with burglary, as a Class C felony. Greenlee pleaded guilty and, during her plea hearing on May 6, 2013, she testified under oath that she had broken and entered the Dollar General store with the intent to commit theft, she had opened the door to get inside, and she had disarmed the alarm system using the code. During that hearing, Greenlee did not testify that Smith or anyone else helped her commit the burglary.

So, the police had a suspect convicted for this burglary. And the corroborating video showed that Greenlee performed the criminal act on her own. But that wasn't enough. They brought charges against Smith "for committing the same December 19 burglary of the Dollar General store."

This double-charging obviously presented an issue. The state prosecutor's case hinged on Greenlee's testimony, something that (a) contradicted her previous testimony during her guilty plea and (b) the surveillance recording of the incident. None of that deterred the state from attempting to achieve the impossible. The state prosecutor warned the jury that it was going to have to come to terms with the fact that the State was willing to use perjury to achieve its goal of putting two people in jail for the same criminal act. Of course, it worded it a bit differently.

During its opening statement at Smith’s trial, the State told the jury:

[y]ou’re also going to hear [Greenlee] give two different versions of what happened. When she first talked to the police, you’re going to hear that she took the blame for being the one inside the store saying she was the one that [sic] went in, that’s her on the tape, that [Smith] was outside in the bushes.

You’re probably also going to hear her sit right up here today and sit on the stand and tell you something different. What she’s probably going to tell you is that she was outside in the bushes and that [Smith] was inside, and you’re going to hear about the factors that may contribute to that change in story and that’s something you’re going to have to deal with at the end of this process.

TL; DR: We're going to lie to you. Good luck!

Nicole Greenlee herself may have wondered how she was going to get away with testifying in direct contradiction of her previous admission. Fortunately, the prosecution promised her that she wouldn't get into any more trouble than she was already in. She was given immunity against perjury charges. So, she testified in direct contradiction of her previous statements. She claimed she confessed just to get the "whole process done and over with" and that she was waiting outside in the bushes while Smith performed the burglary. She also claimed that, while she was in jail, Smith offered to tell the cops that he did it. (The recording was played for the jury, and the State's counsel did not contest the defense's closing arguments that the "offer" was made in the context of "reassuring" the "crying" Greenlee, rather than as an admission that he had performed the burglary.)

The defense moved for a mistrial, pointing out that perjured testimony generally results in overturned convictions upon appeal. The trial court decided that Greenlee's contradictory statements were merely "inconsistent." It maintained this view even after hearing from a police detective whose statements indicated that Greenlee was alone when she burglarized the store.

Following Greenlee’s testimony, the State called South Bend Detective Timothy Wiley and offered into evidence the video surveillance recordings from the burglary. As noted above, Detective Wiley testified that the video evidence shows a white female acting as the only person inside the store during the burglary. Detective Wiley also testified that the cell phone records of Smith and Greenlee show that they were located near each other and were communicating with each other during the course of the burglary. But, on cross-examination, Detective Wiley admitted that he had no way to know the actual locations of each cell phone during the burglary.

Even the detective lied, albeit briefly. And yet, the court (and the jury) still found this to be damning enough to sentence Smith for the burglary he obviously didn't commit.

The appeals court found that Greenlee had committed perjury, in particular, violating this definition from the state statutes:

Has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false;

The State continued to maintain that Greenlee's contradictory statements were merely "inconsistent." Somehow, the prosecution found that Greenlee's claims of being the sole actor and not being the sole actor did not rise to the state's definition of perjury. The appeals court takes that assertion apart.

This is not a case where a witness changes her story during the course of an investigation or during her trial testimony and is merely impeached with her prior inconsistent statements and those inconsistencies are to be resolved by a fact-finder… Greenlee’s statements were not merely inconsistent but mutually exclusive.

The State also argued that it did not "knowingly" proffer perjured testimony. The appeals court points out several facts that contradict this assertion, not the least of which is its offering of immunity to Greenlee against prosecution for perjury.

The State also claimed that no violation of Smith's due process rights occurred as a result of its perjury. In particular, it argued that Smith was probably guilty of something, and even if the perjured testimony removed the possibility that he was the principal actor, there was enough evidence that pointed to him being an accomplice. This assertion is dismissed as well.

Of course, if the jury convicted Smith as the principal, the perjury contributed directly to the jury’s verdict. If, however, the jury convicted Smith as an accomplice, the perjured testimony may have been irrelevant. But whether there was sufficient evidence to convict Smith as an accomplice does not resolve the question of whether Greenlee’s perjury constituted harmless error.

The knowing use of perjured testimony violates due process, impeaches the verdict, and undermines the integrity of the judicial system. Greenlee’s testimony poisoned the well and denied Smith a fair trial.

This is the State being greedy. It had one person charged and convicted, but it wanted even more. It wanted an additional conviction for the same crime badly enough that it allowed the person who had admitted to the crime (and been convicted) to take the stand and claim the opposite. Worse, the trial court allowed this mockery of justice to result in a conviction that ultimately had to be overturned by a higher court -- temporarily creating the impossible situation where both Greenlee and Smith simultaneously robbed the same store while inhabiting the same (white, female) body. As we've noted before, the criminal justice system has a way of making the miraculous seem mundane. This is just one more example of its transformative powers.

from the too-bad,-suckers dept

One of the bizarre side notes to Hollywood's big lawsuit against the cyberlocker Hotfile was a countersuit against Warner Bros. by Hotfile, for using the easy takedown tool that Hotfile had provided, to take down a variety of content that was (a) non-infringing and (b) had nothing to do with Warner Bros. at all (i.e., the company did not hold the copyright on those files). In that case, WB admitted that it filed a bunch of false takedowns, but said it was no big deal because it was all done by a computer. Of course, it then came out that at least one work was taken down by a WB employee, and that employee had done so on purpose, annoyed that JDownloader could help possible infringers download more quickly.

As we've noted many times in the past, there is almost no real punishment for filing false takedowns. The "penalty of perjury" language appears to only apply to the question of whether or not the person filing the takedown actually represents the party they claim to represent -- and not whether the file is infringing at all, or even whether or not the file's copyright is held by the party being represented. And, in the lawsuit, Warner Bros. is relying on that to try to avoid getting hit with a perjury claim. Basically, the company is saying: sure, sure, we lied and pulled down content we had no right to pull down, but the law is so laughably weak and in our favor that screw you all, it doesn't matter what we take down. While WB actually did "agree" to a more strict perjury clause in agreeing to Hotfile's terms, it's now arguing that the terms it agreed to don't count because they're different from the DMCA:

Hotfile first argues that the language on its website substantially complied with the
DMCA and because Warner “was not the owner or authorized by the owner of the materials to
issue the takedown notices,” its takedown notices contained false statements under penalty of
perjury. Opp. at 3. But Hotfile’s argument is a sleight of hand that would transform every
mistaken notice sent to Hotfile into a false statement under penalty of perjury. The sender of a
takedown notice who mistakes a file for an infringing copy of its work is never the “owner or
authorized by the owner” of what the file actually is. But the DMCA expressly does not require
the sender of a notice to certify under penalty of perjury that they have correctly identified the
complained-of file as one of their works. A takedown notice’s “[i]dentification of the
copyrighted work claimed to have been infringed” is not made under penalty of perjury. 17
U.S.C. § 512(c)(3)(A)(ii). A statement under penalty of perjury, under the DMCA, applies only
to the claim to represent the copyright owner of the specific right alleged to be infringed, i.e.
instances in which a copyrighted work is identified by a notice and the issuer falsely claims to be
the representative entitled to take down the work so identified. See 17 U.S.C. § 512(c)(3)(A)(vi).
Hotfile makes no accusation, and has no evidence, that Warner ever falsely claimed to be acting
on behalf of the true copyright owners of the files it accidentally took down (e.g., that Warner,
instead of misidentifying files as its own, ever identified them as the works of other copyright
owners, but then claimed to represent those other owners).

On the legal analysis, Warner Bros. may actually be correct here -- but it only serves to highlight how weak and ineffectual the DMCA 512(f) is, in that it's basically impossible to punish anyone who ever takes down legitimate content with a bogus takedown. As you read the filing, WB appears to be almost gloating that the way copyright law is written, it can take down whatever it wants, and if you don't like it, well, go shove the DMCA up your... and good luck.

If ever there was evidence that there needs to be real teeth behind punishment for filing bogus DMCA notices, it seems like this case should be exhibit number one.

from the modern-politics dept

Greg Miller, at the Washington Post, has a great article discussing the government's continued misinformation campaign over its surveillance activities, going back through history to point out that this is nothing new:

President George W. Bush at times engaged in similarly careful phrasing to defend surveillance programs in the years after the Sept. 11, 2001, attacks. In 2004, while calling for renewal of the Patriot Act, Bush sought to assuage critics by saying "the government can't move on wiretaps or roving wiretaps without getting a court order."

At the time, it had not yet been publicly disclosed that Bush had secretly authorized NSA surveillance of communications between U.S. residents and contacts overseas while bypassing the Foreign Intelligence Surveillance Court.

When the wiretapping operation was exposed in the news media two years later, Bush defended it as a program "that listens to a few numbers, called from outside of the United States, and of known al-Qaeda or affiliate people." Subsequent revelations have made clear that the scope was far greater than his words would suggest.

He also discusses the way that defenders of the NSA's surveillance program use things like redefining the word "target" -- something we've been pointing out for a while now:

Obama's assurances have hinged, for example, on a term — targeting — that has a specific meaning for U.S. spy agencies that would elude most ordinary citizens.

"What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls and the NSA cannot target your e-mails," Obama said in his June 17 interview on PBS's "Charlie Rose Show."

But even if it is not allowed to target U.S. citizens, the NSA has significant latitude to collect and keep the contents of e-mails and other communications of U.S. citizens that are swept up as part of the agency's court-approved monitoring of a target overseas.

That said, what may be most interesting is the revelation that James Clapper has now admitted to lying to Congress, in responding to Ron Wyden's questions:

In early June, after the NSA leaks had brought renewed attention to Clapper's "No, sir," Clapper cited the difficulty of answering a question about a classified program and said in an interview on NBC News that he had responded in the "least most untruthful manner."

He made a new attempt to explain the exchange in his June 21 correspondence, which included a hand-written note to Wyden saying that an attached letter was addressed to the committee chairman but that he "wanted [Wyden] to see this first."

Clapper said he thought Wyden was referring to NSA surveillance of e-mail traffic involving overseas targets, not the separate program in which the agency is authorized to collect records of Americans' phone calls that include the numbers and duration of calls but not individuals' names or the contents of their calls.

Referring to his appearances before Congress over several decades, Clapper concluded by saying that "mistakes will happen, and when I make one, I correct it."

This is unbelievable on a variety of levels. First off, as Wyden made clear, his office had sent Clapper the question a day before the hearing so that he knew the question was coming. To argue that he was confused about the question is quite unbelievable. Furthermore, Senator Wyden claimed that: "after the hearing was over my staff and I gave his office a chance to amend his answer." Clapper now says that his staff "acknowledged the error to Senator Wyden soon after the hearing," but if that's the case, it doesn't appear that anyone else seems to know about this. Furthermore, if this were true, then wouldn't Clapper have said this back in early June when people first started asking about those statements? But he did not. This sounds like after-the-fact rationalizations for lying to Congress and being called on it.

Similarly, Chris Soghoian rightly mocks Clapper for the claim that "mistakes will happen, and when I make one, I correct it," by pointing out that Clapper appears to have left off a few important caveats to the end of that sentence: "3 months later, after a front-page scandal."

On top of that, we're talking about perjury, in lying to Congress. If other people perjure themselves, do they get to -- many months later -- go back and say "whoops, my bad" and get away with it?

Finally, when looked at in the context of Clapper's previous answer that he gave the "least untruthful" answer to Wyden, in which he suggested that he fully understood the question, would that now compound the lies? Did he give the least untruthful answer to a complex question, or did he not understand the question. He's now claimed both, and under either case, he seems to be continuing to lie, rather than answer honestly.

Unfortunately, it appears that Clapper is likely to get away with blatant lying to Congress as well, as experts are saying there's almost no chance of prosecution in this case. Why? Well, in part because apparently everyone seems to accuse everyone else of lying to Congress so frequently that no one pays any attention to when it actually happens.

Liar-liar-pants-on-fire charges have become so ordinary and expected in Washington, that few pay serious attention to them. Such charges are understood as merely another weapon in the partisan's arsenal.

But there is another reality about false statements to Congress. Lying is always easy to charge, but never easy to prove. Before anyone can be formally and criminally charged with lying to Congress, the committee before which the purported false testimony was given must vote to refer the matter to the U.S. Attorney for the District of Columbia for prosecution.

Such votes are not easily nor lightly taken. Such a referral for prosecution cannot be based on a hunch or a hope; rather it requires solid evidence that one or more of the relevant statutes has been violated, along with supporting evidence.

That article also notes that there have been "less than a dozen successful prosecutions of witnesses testifying falsely before Congress." Of course, in this case, unlike elsewhere, we have Clapper flat out admitting to lying to Congress. In fact, as the article notes above, Clapper's admission shows that he violated three separate relevant laws. So the "proof" is a lot lower a burden. And yet, still nothing is likely to be done. As that article notes, the prosecutions tend to be around scandals that have pissed off Congress, and that doesn't appear to the case here (ridiculously).

In other words, there's almost certainly no punishment for lying to Congress, and the NSA and other intelligence officials have a long history of basically doing just that, knowing that there's no harm in it. In fact, as that article notes, Clapper's eventual "punishment" is likely to be that he leaves his current job to get a "much higher salary, as an executive in the private sector that provides most of America's digital-intelligence operations."

from the because-they-wrote-the-laws dept

We've noted plenty of examples of completely bogus takedowns due to copyright claims -- including some pretty serious ones. Over at TorrentFreak, they're asking if such bogus takedowns should be punished in some manner, and they suggest a three strikes system, in which after the third strike, parties are not allowed to file any more takedowns for a month. I'm not sure such a system would really be that productive, but it does seem that something should be done. I know that whenever we talk about bogus takedowns, people point to the "penalty of perjury" language found in DMCA takedown notices. But that's usually a misreading of what the perjury notices actually say. The "penalty of perjury" part only needs to apply to the claim that the party writing the letter is authorized to act on behalf of the rightsholder. That's it. It does not need to apply to the claim that the content is actually infringing, even though most people interpret the notice to read that way. Separately, when the takedowns happen via automated systems like YouTube's ContentID, or via government action, like ICE's domain seizures, the perjury claims have no bearing at all, since they happen outside of the DMCA entirely.

So what can or should be done in those situations? At one point, some Brazilian officials had suggested effectively putting the public domain and fair use on par with copyright -- and thus equalizing the punishments for violating either. There is some poetic justice in such a setup. Given the insanity of today's statutory damages rates (which can lead to up to $150,000 for infringement of a single item), would it be reasonable to then say if you take down something incorrectly, you are opening yourselves up to similar damages?

Defenders of copyright would argue that's way too harsh, though they'd do so without any hint of realization that those penalties are way too harsh for today's infringement as well. Besides, they wouldn't have to worry if they only issue proper takedowns.

Of course, the problem with that is that you're effectively creating a "two wrongs" situation, rather than fixing the bad situation. You could argue that if you set it up so that the two sides had to be in lockstep, then that might actually encourage copyright holders to be more willing to come to the table to reduce statutory damages to more reasonable levels, though this also explains why they'd fight as hard as they could against any such proposal.

In the end, I really don't know what the proper response is -- but it does seem clear that the ability to falsely censor content online, thanks to the DMCA and bogus notices and automated systems, is a real problem that needs to be fixed.

from the legal-food-fight dept

We've noted in the past that there's been a bit of a debate within the American Bar Association concerning the position it should take on SOPA/PROTECT-IP. It seems that the fight is heating up, and different kinds of lawyers are fighting about it. The Trademark Legislation Committee agreed to and adopted (by a pretty wide margin) a resolution saying that SOPA needed significant changes to prevent abuse. A key change? That the private right of action should be filed "under penalty of perjury," rather than the toothless sanctions for those who file bogus takedowns. This seems like a reasonable suggestion to prevent abuse, and the Committee agreed.

But... then the copyright lawyers flipped out. Despite this and other suggestions already being agreed to, the copyright folks proposed a bunch of changes -- including deleting the "penalty of perjury" inclusion. Another change? The trademark lawyers had agreed that the private right of action definition of "dedicated to theft of US property" should be much more limited, adding significant qualifiers to what is covered to deal with the vagueness of the definition. The copyright lawyers want that deleted as well.

Further on that point, the letter the trademark lawyers prepared highlighted serious concerns about how vague the definition of "dedicated to theft of US property" is, and pointed out how it has significant inconsistencies that "need to be addressed." The copyright lawyers? Apparently they don't want to address the inconsistencies and want the whole complaint about the language dumped. Specifically, here was the recommendation that had been approved:

As worded, the definition of web sites that are “Dedicated to Theft of U.S. Property,” which forms the basis of liability pursuant to this bill, is vague and requires some clarification. Specifically, § 103(a)(1)(B)(i) provides three different ways in which a U.S. directed site could have exposure to action under this bill: 1) if it is “primarily designed or operated for the purpose of . . . offering goods or services in a manner that engages in, enables, or facilitates” a violation of 17 U.S.C. § § 501 or 1201, or counterfeiting under 15 U.S.C. § 1116(d) or 18 U.S.C. § 2320; 2) if it “has only limited purpose or use other than . . . offering goods or services in a manner that engages in, enables, or facilitates” the same violations; or 3) if it “is marketed by its operator or another acting in concert with that operator for use in offering goods or services in a manner that engages in, enables, or facilitates” the same violations.

Option three in this series does not require a showing that the marketing efforts have a primary purpose of, or have a limited purpose other than, infringing these intellectual property rights. We believe this inconsistency needs to be addressed to reduce possibility of abuse that could result in the effective shut down (by disabling a revenue stream) of an otherwise legitimate web site that offered a single product later determined to be a counterfeit.

In order to effectuate this purpose, option three in the series identified above should be modified to reflect a narrow interpretation of the definition of “Dedicated to Theft of U.S. Property.”

The copyright lawyers? Want that whole section left out. Basically, it looks like anything that highlights the serious problems of SOPA should be taken out, according to the copyright lawyers. The stuff left in is minor and inconsequential.